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done” in regard to unbuckling the lap belt. Thus, Hodson’s deposition testimony leaves open the possibility that someone else unbuckled the lap belt. In fact, this is precisely what defendants believe occurred and what the evidence supports. The EMT who was in the best position to unlatch Clark’s belt (which was latched on Clark’s right side to a buckle attached to the center console) was David Duncan, who had entered the car through the front passenger door (and who, with the assistance of the other EMTs, removed Clark through that door). NR 47:Tab 9 at 13; NR 47:Tab 10 at 27-28. At his deposition, Duncan agreed that his responsibility in this situation would have included “ensur[ing] that the seat belts that the patient was wearing were released,” but he could not recall whether he unbuckled Clark’s lap belt. NR 47:Tab 9 at 13. Clark is thus wrong to suggest that Hodson’s deposition answer “raises the inference” that Clark’s lap belt “was already released.” AOB 19.

Third, Hodson’s affidavit goes well beyond any conceivable ambiguity in her deposition testimony. It is simply impossible to reconcile Hodson’s deposition testimony that she “d[id]’t recall anything” about the lap belt (NR 47:Tab 8 at 11-12) and could “only * * * positively recall” that Clark’s shoulder belt was in place (id. at 11) with her subsequent statement in her affidavit that she believed, based on her “memory,” that Clark’s “lap belt was not attached around his waist * * * when I first arrived on the scene * * * .” NR 54:Exh. 2 at 2 (emphasis added). Not only does this contradiction show that the true purpose of Hodson’s affidavit was to alter rather than to clarify her prior sworn testimony, but it also confirms that the district court did not abuse its discretion in ruling that Hodson’s affidavit should be stricken.8/

8/ Even if the district court should have allowed Clark to submit the portion of Hodson’s af idavit that made explicit the supposed inference drawn by Clark from Hodson’s deposition answer (i.e., that Hodson did not unbuckle Clark’s lap belt) — an argument Clark did not raise in this Court or below — it is dif icult to see how the failure to do so could constitute an abuse of discretion, especiallygiven (1) the inclusion of statements in Hodson’s affidavit thatwent far beyond any clarifying function, and (2) Clark’s complete


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